Fawad Jan v The Secretary of State for the Home Department

The Upper Tribunal's power to set aside its own decisions is confined to rule 43 and rules 45–46 of the Tribunal Procedure (Upper Tribunal) Rules 2008. It has no separate inherent power, nor a relevant equivalent High Court power under section 25 of the Tribunals, Courts and Enforcement Act 2007.

Rule 43 may apply to an excluded decision which disposes of proceedings. It requires both that setting aside be in the interests of justice and that a specified procedural condition, including a procedural irregularity, be established. It cannot be used to reopen a decision on wholly substantive grounds.

The applicant, a Pakistani national, appealed against the refusal to vary his leave and directions for removal. The First-tier Tribunal dismissed his appeal. Both the First-tier Tribunal and Upper Tribunal refused permission to appeal.

After changing representatives, the applicant sought review under section 10 of the Tribunals, Courts and Enforcement Act 2007. He relied in substance on rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, alleging that the Upper Tribunal's refusal of permission involved a serious procedural irregularity. The application was late, but time was extended to determine the jurisdictional issue.

The central question was whether the Upper Tribunal could set aside its refusal of permission and, if so, whether the statutory and procedural conditions were met.

1. Application refused. The applicant identified no procedural irregularity and no basis on which the interests of justice required the refusal of permission to be set aside.

2. Following Manorama Patel and Others v SSHD [2015] EWCA Civ 1175, the Tribunal's self-set-aside powers are limited to rule 43 and rules 45–46 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Court of Appeal's concentration on the statutory review scheme, and its failure to rely on inherent jurisdiction or section 25 powers, meant that those possible wider sources could not supply a power to rescind a decision.

3. Rule 43 was potentially available because a refusal of permission to appeal disposed of the proceedings. Its availability did not depend on whether the decision was an excluded decision. However, rule 43 requires a procedural basis as well as an interests-of-justice assessment. A challenge directed only to the substantive correctness of the decision does not satisfy that rule.

4. The review jurisdiction under section 10 and rules 45–46 was unavailable. The Tribunal was not considering permission to appeal to the Court of Appeal, and the decision refusing permission to appeal to the Upper Tribunal was an excluded decision. The applicant's allegation that the judge had not addressed particular wording in the First-tier Tribunal decision concerned substance, not procedure.

• Upper Tribunal (Immigration and Asylum Chamber): refused this application to set aside its earlier refusal of permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal on 3 September 2015.
• First-tier Tribunal: Judge Chohan refused permission to appeal on 13 July 2015.
• First-tier Tribunal: Judge Mather dismissed the applicant's immigration appeal on 1 May 2015.